Category Archives: Environment

McGirt, Oklahoma, and the EPA – Federal anti-Indian Law in Action

So much hoopla surrounded the McGirt v. Oklahoma decision that few people could see what the case really decided.

The decision said the Creek Nation was “Indian country” as defined in federal law and that Oklahoma had no jurisdiction over crimes committed by Native persons in Creek territory. Lots of people were thrilled to read Justice Gorsuch’s opening line, “On the far end of the Trail of Tears was a promise.”

The temptation was great to think McGirt closed the door on the genocidal era of “Indian Removal.” But McGirt didn’t close that door. In the language of federal Indian law, when it said Creek lands are part of “Indian country” it meant they are subject to the US Major Crimes Act. That was the legal question in the case.

Despite the hoopla about a “landmark decision,” McGirt did not transform federal Indian law. In fact, McGirt upheld the key federal Indian law doctrine of US domination over Native nations and peoples — the doctrine called “congressional plenary power.” It said the Creek Nation existed because Congress had not (yet) “disestablished” it.

As the majority opinion itself pointed out, it was reaffirming the “plenary power” claim of US domination asserted by the Supreme Court “long ago”:

This Court long ago held that the Legislature [Congress] wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties. 

The majority and dissent in McGirt were in agreement about this fundamental point of law. They both said the US Congress can do as it wishes with Native nations, peoples, and lands. The only difference between the majority and dissent was whether Congress had or had not “disestablished” the Creek nation. The dissent said yes. The majority said no.

To make the fundamental point clear, the majority said Congress could do the dirty deed whenever it wished:

of course, …Congress remains free to [take action]… about the lands in question at any time. It has no shortage of tools at its disposal.

Anyone who reads the decision can see this, even with rose-colored glasses.

We should, therefore, not be surprised that the US Environmental Protection Agency has stepped through the “disestablishment” door left wide open in McGirt. On October 1, 2020, the EPA, at the request of the governor of Oklahoma, granted the state regulatory control over environmental issues in “areas of Indian country described in the state’s request.”

Governor Stitt and EPA Administrator, Andrew Wheeler, had the audacity to flaunt the McGirt decision, knowing that it upheld US domination despite its appealing rhetoric. As Wheeler’s letter put it:

…the impetus for the State’s request was the recent decision of the U.S. Supreme Court in McGirt v. Oklahoma…. EPA understands the State’s reference to McGirt as an explanation of the State’s intent substantially to reestablish the geographic scope of the State’s environmental programs as implemented prior to the Supreme Court’s decision….

Some may call this “realpolitik”; some may call it “playing hardball.” It is both. And yet, how exactly does it work? Didn’t McGirt say Oklahoma didn’t have jurisdiction in “Indian Country”? Aha! Re-read above: McGirt said, “Congress remains free to [take action]… about the lands in question at any time. It has no shortage of tools at its disposal.” And what “tools” did the EPA and Oklahoma rely on?

They relied on a tiny provision snuck into an innocuous-sounding law passed in 2005, titled “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users.” In typical American political style, the title boils down to the catchy acronym SAFETEA. Who but a true cynic would guess there was a little provision in the Act about environmental regulation that applied only to Oklahoma? It was inserted by Senator James Inhofe of Oklahoma, Chair of the US Senate Committee on Environment and Public Works. The provision was “SECTION 10211. ENVIRONMENTAL PROGRAMS. OKLAHOMA.” Here’s the part the governor and administrator used:

…on request of the State, the Administrator [of the Environmental Protection Agency] shall approve the State to administer the State program in the areas of the State that are in Indian country, without any further demonstration of authority by the State.

When TYT News reported the EPA had granted Oklahoma the same authority the state had before McGirt, they explained that the EPA “can do this because federal legislation can nullify Supreme Court rulings.” In this case, the legislation was passed 15 years before the ruling, so it’s not quite right to say it “nullified” it. Nonetheless, this is precisely the Achilles heel of McGirt. It was visible to anyone who really read the McGirt decision: “Congress remains free…. It has no shortage of tools….”

The “freedom” of Congress is the unfreedom of Native nations and peoples. The original free existence of Native nations and peoples in their own lands was and is the target of federal Indian law. Federal Indian law, understood to its core — “plenary power” — is federal anti-Indian law, built to seize Native lands. The EPA – Oklahoma deal is only the latest effort.

Casey Camp-Horinek, Environmental Ambassador, Elder, and Hereditary Drumkeeper, Ponca Nation, provided the following statement to TYT:

“After over 500 years of oppression, lies, genocide, ecocide, and broken treaties, we should have expected the EPA ruling in favor of racist Governor Stitt of Oklahoma, yet it still stings. Under the Trump administration, destroying all environmental protection has been ramped up to give the fossil fuel industry life support as it takes its last dying breath. Who suffers the results? Everyone and everything! Who benefits? Trump and his cronies, climate change deniers like Governor Stitt, Senators Inhofe and Langford, who are financially supported by big oil and gas. I am convinced that we must fight back against this underhanded ruling. In the courts, on the frontlines and in the international courts, LIFE itself is at stake.”

Casey Camp-Horinek

Life is at stake. And federal anti-Indian law is part of the problem. Despite the fancy rhetoric of “trust relationship” and “government-to-government relationship,” the basic doctrine in federal Indian law is “plenary power.” As the 1903 Lone Wolf v. Hitchcock decision cited by McGirt makes clear, this so-called “plenary power” is an outgrowth of the 1823 federal Indian law property doctrine of “Christian discovery.”

Here’s how Chief Justice John Marshall stated “Christian discovery” in the 1823 case, Johnson v. McIntosh:

John Marshall

The colonists “acquire[d] territory on this continent …[under] the principle [of the] right of discovery [of] countries then unknown to all Christian people….

“[This is] a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery. [Marshall’s emphasis]

Marshall was emphatic in adopting “Christian discovery” into US law. He said, “The United States…have unequivocally acceded to that great and broad rule….”

Justice Joseph Story, who participated in the Johnson v. McIntosh decision, later put it this way in his Commentaries:

Joseph Story

“…the title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations.

The territory, over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed, as if it were inhabited only by brute animals.”

What more needs to be said? A colonial, racist doctrine of religious supremacy is still at the core of US “federal Indian law.” Native peoples are “merely occupants” not owners in their lands. They have the same legal status as “brute animals.” That is the “law” that still upholds colonizing, extractive industries and governments destroying the world’s ecosystems.

McGirt may have some usefulness to those who will try to block the EPA – Oklahoma deal. The majority said Congress must be “clear” when it “disestablishes” a Native nation. Was the tiny provision hidden in the “Transportation Equity Act” a “clear expression” of the intent of Congress to impose state jurisdiction over Native nations surrounded by Oklahoma? That will be the technical question.

The real question is how much longer America will tolerate a racist religious doctrine as part of its legal system.

Contaminated Water Escaping Nuclear Plant, Japanese Regulator Warns – NYTimes.com

Government officials have said that the water is probably leaking from broken pipes inside the reactor, from a breach in the reactor’s containment vessel or from the inner pressure vessel that houses the nuclear fuel.

via Contaminated Water Escaping Nuclear Plant, Japanese Regulator Warns – NYTimes.com.

Geez, I guess the water must be coming from somewhere…. did they check for a leaky toilet? No, there wouldn’t be plutonium there, unless someone tried to flush it down as the investigators arrived…..

How long can they pretend this is not a meltdown?

but not to worry:

“We’re basically in a brainstorming phase right now,” ….

ADDENDUM 18 May 2011:

Finally, the truth is acknowledged:

Cleanup Schedule Unchanged at Nuclear Power Plant After Release of Meltdown – NYTimes.com

The company now acknowledges that a fuel meltdown occurred at three of the plant’s six reactors in the early hours of the crisis….

As Chico Marx said: “”Well, who you gonna believe, me or your own eyes?”

J. G. Ballard and the Death of Rain (thoughts on the oil volcano in the Gulf)

In 1965, novelist J. G. Ballard published The Drought, an expanded version of his science fiction novel published a year earlier, The Burning World. With these early novels, Ballard was well under way toward achieving the literary distinction of having a genre named for him: “ballardian” — “dystopian modernity, bleak man-made landscapes & the psychological effects of technological, social or environmental developments.”

The story of The Drought is the disappearance of potable water, a consequence of the disappearance of rain. The excerpt quoted below provides a capsule history of the disappearance and an explanation for it: the disruption of the hydrologic cycle caused by a thin “mono-molecular film” on the surface of the oceans. Covered by this film, the oceans no longer provide sufficient evaporation to produce rain on the world’s lands.

The striking thing about Ballard’s dystopian vision is in the details: The ocean film is “a complex of saturated long-chain polymers,” formed from a “brew” of “highly reactive industrial wastes—unwanted petroleum fractions, contaminated catalysts and solvents… mingled with the wastes of atomic power stations and sewage schemes.” Here is not only a vision, but prescience, a glimpse into a world post- British Petroleum’s Deep Horizon well blow-out.

Here is the excerpt [from pp. 33-35, Triad/Panther paperback (1985)]:

The world-wide drought now in its fifth month was the culmination of a series of extended droughts that had taken place with increasing frequency all over the globe during the previous decade. Ten years earlier a critical shortage of world food-stuffs had occurred when the seasonal rainfall expected in a number of important agricultural areas had failed to materialize. One by one, areas as far apart as Saskatchewan and the Loire valley, Kazakhstan and the Madras tea country were turned into arid dust-basins. The following months brought little more than a few inches of rain, and after two years these farmlands were totally devastated. Once their populations had resettled themselves elsewhere, these new deserts were abandoned for good.

The continued appearance of more and more such areas on the map, and the added difficulties of making good the world’s food supplies, led to the first attempts at some form of global weather control. A survey by the U.N. Food and Agriculture Organization showed that everywhere river levels and water tables were falling. The two-and-a-half million square miles drained by the Amazon had shrunk to less than half this area. Scores of its tributaries had dried up completely, and aerial surveys discovered that much of the former rainforest was already dry and petrified. At Khartoum, in lower Egypt, the White Nile was twenty feet below its mean level ten years earlier and lower outlets were bored in the concrete barrage of the dam at Aswan.

Despite world wide attempts at cloud-seeding, the amounts of rainfall continued to diminish. The seeding operations finally ended when it was obvious that not only was there no rain, but there were no c1ouds. At this point attention switched to the ultimate source of rainfall—the ocean surface. It needed only the briefest scientific examination to show that here were the origins of the drought.

Covering the off-shore waters of the world’s oceans, to a distance of about a thousand miles from the coast, was a thin but resilient mono-molecular film formed from a complex of saturated long-chain polymers, generated within the sea from the vast quantities of industrial wastes discharged into the ocean basins during the previous fifty years. This tough, oxygen-permeable membrane lay on the air—water interface and prevented almost all evaporation of surface water into the air space above. Although the structure of these polymers was quickly identified, no means was found of removing them. The saturated linkages produced in the perfect organic bath of the sea were completely non-reactive, and formed an intact seal broken only when the water was violently disturbed. Fleets of trawlers and naval craft equipped with rotating flails began to ply up and down the Atlantic and Pacific coasts of North America, and along the sea-boards of Western Europe, but without any long-term effects. Likewise, the removal of the entire surface water provided only a temporary respite—the film quickly replaced itself by lateral extension from the surrounding surface, recharged by precipitation from the reservoir below.

The mechanism of formation of these polymers remained obscure, but millions of tons of highly reactive industrial wastes—unwanted petroleum fractions, contaminated catalysts and solvents—were still being vented into the sea, where they mingled with the wastes of atomic power stations and sewage schemes. Out of this brew the sea had constructed a skin no thicker than a few atoms, but sufficiently strong to devastate the lands it once irrigated.

This act of retribution by the sea had always impressed Ransom by its simple justice. Cetyl alcohol films, had long been used as a means of preventing evaporation from water reservoirs, and nature had merely extended the principle, applying a fractional tilt, at first imperceptible, to the balance of the elements. As if further to tantalize mankind, the billowing cumulus clouds, burdened like madonnas with cool rain, which still formed over the central ocean surfaces, would sail steadily towards the shorelines but always deposit their cargo into the dry unsaturated air above the sealed offshore waters, never on to the crying land.

There are those who will claim the mantle of science to dismiss Ballard’s vision as only fiction. The federal government itself, in partnership with BP, would have us believe the oil volcano (or “spill”) in the Gulf has been capped with no long-term damage to the ocean. Here’s their report, released on August 4, 2010, by the National Oceanic and Atmospheric Administration and the U.S. Geological Survey:

…. burning, skimming and direct recovery from the wellhead removed one quarter (25%) of the oil released from the wellhead. One quarter (25%) of the total oil naturally evaporated or dissolved, and just less than one quarter (24%) was dispersed (either naturally or as a result of operations) as microscopic droplets into Gulf waters. The residual amount — just over one quarter (26%) — is either on or just below the surface as light sheen and weathered tar balls, has washed ashore or been collected from the shore, or is buried in sand and sediments. Oil in the residual and dispersed categories is in the process of being degraded.

Despite this rosy assessment, the report concludes: “… federal scientists remain extremely concerned about the impact of the spill to the Gulf ecosystem. Fully understanding the impacts of this spill on wildlife, habitats, and natural resources in the Gulf region will take time and continued monitoring and research.”

In Ballard’s story, the “full understanding” took about a decade to acquire.

In a sign that others are more attuned to the dystopic possibilities of the blow-out in the Gulf, the report “set off a war of words … among scientists, Gulf Coast residents and political pundits about what to make of the Deepwater Horizon spill and its aftermath,” according to an article in The New York Times.

Meanwhile, further research by other scientists “confirms the existence of a huge plume of dispersed oil deep in the Gulf of Mexico and suggests that it has not broken down rapidly, raising the possibility that it might pose a threat to wildlife for months or even years.” The dispute about the science is ongoing, and at least one observer understands the potential for fiction in scientific reports: Rep. Ed Markey (D-Mass.), chairman of the House Energy and Commerce Committee’s Energy and Environment subpanel, said during a hearing on the official report, “People want to believe everything is OK, and I think this report and the way it is being discussed is giving many people a false sense of confidence regarding the state of the Gulf.”

Local news reports along the Gulf coast provide additional information contradicting the official report: “a coalition of Gulf community activists, scientists and philanthropists are saying the federal government and BP are misrepresenting the amount of oil left to be cleaned up in the Gulf of Mexico and the safety of eating seafood from the region.”

One long-term Florida resident provides a useful compendium of information on a website wholly devoted to the Gulf oil mess: “What I was seeing in the local and national media barely scratched the surface.”

If you want to take a quick look at the kind of science that is being used to study oil in the oceans — including the variety of assumptions (dare we say “fictions”?) involved — see these documents:

1. The “Ask a Scientist” answer to a nine-year-old student’s question, “Does oil evaporate?“; provided by the Newton Project of the Argonne National Laboratory of the U.S. Department of Energy:

… the molecules in some kinds of liquids, like oil for example, are rather large and well-tangled up and attached to each other. This means that evaporation, if it occurs at all, is very slow.

2. “Evaporation of Oil Spills,” by M. F. Fingas, Emergencies Science Division, Environmental Technology Division, Environment Canada, submitted to Journal of the American Society of Civil Engineers, 1994:

Although the process of oil evaporation is understood, the application of evaporation equations in spill models is sometimes difficult. This relates to the input data required for the equations. There are only 3 relatively well-used schemes currently employed in models. The most commonly used is that of evaporative exposure as proposed by Stiver and Mackay (1984). Difficulties with the implementation of this model are primarily in terms of input data. Model implementation requires a mass transfer coefficient and a vapour pressure for each oil. These are not routinely measured for oil and must be estimated using other techniques. The second most-commonly used method is that of applying oil fraction-cut data. These methods are applied by using the readily-available distillation curves to estimate parameters for the Mackay equations noted above or in a direct technique. The third most common method is to assume a loss rate which is estimated from oil properties and the presumption that the oil moves linearly or logarithmically to that end point.

A blurb from The New Statesman, reviewing Ballard’s The Drought, is quoted on the front cover of the 1985 paperback edition: “powerfully credible, a compulsive nightmare.”

Indeed.

A statistic from the Department of Atmospheric Sciences, University of Illinois at Urbana-Champaign: “Approximately 80% of all evaporation is from the oceans, with the remaining 20% coming from inland water and vegetation.”